State v. Byrd, 122458

Background

Byrd was charged with aggravated domestic battery (felony), endangering a child (A misdemeanor), and battery (B misdemeanor) after G.T. testified he choked and repeatedly struck her while her one-year-old son was present.
Medical/photographic evidence and officer testimony corroborated G.T.'s account of strangulation and bruising; G.T. gave somewhat inconsistent pretrial statements but testified at trial and the jury convicted Byrd on all counts.
At the instructions conference Byrd requested a misdemeanor lesser-included instruction (domestic battery K.S.A. 2017 Supp. 21-5414(a)(2)); the district court declined to give it. Byrd objected to the district court’s PIK-form verdict form that listed "guilty" before "not guilty."
At sentencing Byrd objected to his criminal-history score, challenging a 2009 juvenile adjudication listed in the PSI as an aggravated-burglary "person misdemeanor"; the court treated it as a severity level 5 person felony and scored his history as B.
Byrd appealed raising three issues: (1) failure to give the lesser-included domestic battery instruction; (2) ordering of verdict-form options; and (3) classification of the juvenile aggravated-burglary adjudication for criminal-history scoring.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Byrd)	Held
Lesser-included instruction: whether domestic battery (a)(2) is a lesser-included of aggravated domestic battery (b)(1) and whether failure to instruct was reversible	Either Byrd failed to preserve a specific request; in any event no reasonable probability outcome would differ (harmless)	Requested misdemeanor domestic battery instruction was preserved and legally/factually appropriate; failure requires reversal unless State proves no reasonable probability of different verdict	Preserved; (a)(2) is a legally and factually appropriate lesser-included offense; error harmless because evidence of strangulation was strong and no reasonable probability of different verdict
Verdict form order: whether listing "guilty" before "not guilty" prejudiced presumption of innocence	PIK-approved form is proper; jury was fully instructed on presumption of innocence; no plausible prejudice	Placing "not guilty" first better protects presumption and could subtly influence jurors	District court properly used PIK form; precedents (Wesson/Wilkerson/Fraire) reject Byrd’s argument
Criminal-history classification: whether 2009 juvenile "Count 4" adjudication counted as a person felony or was a misdemeanor (affecting score B vs C)	Journal entry contained a typographical error; aggravated burglary has always been a severity level 5 person felony; State met burden to prove conviction	Journal entry lists Count 4 as a "person misdemeanor"; Byrd lacked recollection and challenges scoring	Court credited State; treated the PSI entry as a typo; judicial notice and record supported felony classification; criminal-history score B affirmed

Key Cases Cited

State v. Gentry, 310 Kan. 715 (2019) (standards and burden for reversibility inquiry on instruction error)
State v. Toothman, 310 Kan. 542 (2019) (strict elements test for identifying lesser-included offenses)
State v. Plummer, 295 Kan. 156 (2012) (standard that State must show no reasonable probability omitted instruction changed outcome)
State v. McCullough, 293 Kan. 970 (2012) (State’s burden when a properly requested lesser-included instruction is omitted)
State v. Wesson, 247 Kan. 639 (1990) (approving verdict form with "guilty" before "not guilty")
State v. Wilkerson, 278 Kan. 147 (2004) (reaffirming Wesson on verdict-form order)
State v. Fraire, 312 Kan. 786 (2021) (rejecting claim that verdict-form order affects jury verdict; no prejudice shown)
State v. Obregon, 309 Kan. 1267 (2019) (burden on State to prove prior convictions when defendant challenges PSI)
State v. Hughes, 290 Kan. 159 (2010) (same: State must prove prior convictions at sentencing)
State v. Doelz, 309 Kan. 133 (2019) (substantial competent evidence standard on appellate review of sentencing findings)